Were I so disposed, I might well have wagered during Monday’s three-hour court hearing on the botched March primary election that two-term McLennan County Precinct 1 Commissioner Kelly Snell would by now be retracing his steps across his precinct and re-erecting his distinctively yellow campaign signs for an election redo with challenger Cory Priest. It certainly made sense.
A final analysis of poll numbers suggests 93 voters were cheated of the opportunity to vote in the race because of incorrectly issued ballots — and, given the narrow margin of Snell’s victory (25 votes), it only seemed natural the election be redone. And because voters will vote in other races in the May 24 runoff, it wouldn’t cost much extra to also place this election on the Republican ballot.
But all of this would be flawed thinking, at least from a legal perspective. While the patience of retired state District Judge James Morgan at times seemed tested by Snell’s attorney, he ultimately bought David Tekell’s argument that it was statistically impossible the election’s outcome would have changed had those 93 people actually voted in this race. And given the additional argument that another election might disenfranchise all voters who came out on Election Day, voted in the race but might opt not to return for another election (for whatever reason), the Priest plea for a new election was denied. Snell prevailed.
Complicating all this was what appeared to be general confusion by the attorneys representing Snell and Priest on what previous court cases going back more than 100 years regarding election mishaps had said and what the rulings meant. At different points, both attorneys cited the same court decision to add the weight of precedent to their clients’ cases.
And when Snell’s attorney called to the witness stand Kevin Stuart, a political scientist with the Austin Institute for the Study of Family and Culture, to testify how the folks who didn’t get to vote March 1 almost certainly would have voted (based on how other folks voted), Priest’s attorney, Joe Nixon, understandably objected, labeling it all “junk science.” And when Nixon and Stuart mixed it up on the probability of something happening or not happening, the latter offered up this statistical jewel: “We’re not perfectly sure the sun won’t go supernova tomorrow, but it’s not a great cause for concern.”
At another point, when Tekell objected that Nixon was being argumentative with his expert witness, Judge Morgan deadpanned: “Oh, it’s argumentative, but that’s where we are. We’re arguing about it.” And so the arguing continued.
Snell argued that the 93 voters should have scrutinized the flawed ballots on Election Day and raised any objections there and then rather than after casting their ballots and going home. This prompted Nixon to inquire whether Snell believed voters should know all the races on a ballot before voting — and whether he believed in poll taxes.
Not to be outdone, Nixon in his closing argument told the frontier story of David Kelso’s winning his election to the Indiana Senate in 1844 by one vote — an election in which ailing farmer Freeman Clark, whom Kelso once defended of a murder charge, ordered his sons to carry him to the polls so he could return the favor and then died on the return trip. Kelso, having won by that one vote, later clinched election of Edward Hannigan to the U.S. Senate by Indiana’s divided state senators, again by one vote — Kelso’s. (At the time, state legislatures selected U.S. senators.) Hannigan went to Washington, D.C., where in 1845 he voted for annexation of Texas by the United States, a controversial measure that passed, again, by one vote. So Texas history was made by one vote — sort of — and some Hoosiers.
All that done, Nixon dedicated the day’s proceedings to Freeman Clark and the 93 voters disenfranchised in the March 1 primary election. But the courtly gesture came to naught, given the judge’s denial of a new election. Better luck next time.